Saudi Arabia, Russia, Venezuela and Qatar agreed to freeze production at January levels provided the other members of OPEC agree to go along. Apparently this has been in the works for a while, so oil isn’t having much of a reaction.

Household debt increased 0.4% in the fourth quarter, according to the NY Fed. Student Loan and Auto loan financing are growing the most, while mortgage and HELOC is steady or falling. Credit quality for mortgage debt remains strong, however you can see the increase in low-FICO auto loans (the new subprime). Debt levels below:

As the Spring Selling Season begins, inventory remains tight, especially close to urban areas. The supply of homes is the lowest since 2005.

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Good piece on the lasting significance of Bork vis-a-vis future Supreme Court nominations:

“Bork and the Evolution of American Conservatism
By Noah Millman • December 19, 2012, 1:23 PM

Robert Bork’s last name became a verb in 1987, when, after being nominated by President Reagan to the Supreme Court, he was ferociously attacked as someone who sought to reverse all the gains of the Civil Rights movement (among other things). Bork himself protested at the time that this was a dreadful distortion of his record, but he was defeated, roundly, as the Senate Democrats had warned Reagan they would do. And that is the primary way he will be remembered: by liberals as the confirmation fight that finally stopped (or at least slowed) the advance of the Reagan Revolution’s legal arm, and by conservatives as the confirmation fight that revealed that there was no consensus about what qualified one for the highest court, and that nominations to the Court would hereafter be ideological battles.”

This seems self-evident, to me, but by reading Plumline it obviously is not.

Although they seem to be interpreting any mention of Bork as saying this current strategy is identical to Bork, which I don’t think is being said. What’s being said, and I can see no flaw in the argument, is that there is a direct line from Bork to where we are now. Or, if not a direct line, a line where it is very easy to connect the dots.

The objections to Bork were entirely ideological in nature, and very publicly so. Kennedy, et al, did not want someone of Bork’s strict textual constitution approach on the bench. Because he would not ever find a new right in a penumbra or emanation.

The main difference here is the Republicans have demonstrated that they do not have Edward Kennedy’s patience or thoughtfulness, in that they’ve simply announced they won’t vote for anybody Obama nominated because they know what kind of person he’s going to nominate, so why bother? They’re just taking it to the next level. And it’s the logical outgrowth of pretty much every confirmation fight for a SCOTUS judge since the Bork era.

And that wouldn’t work with Clarence Thomas, so . . . “sexist”. It all fits together neatly, doesn’t it?

Quoth Edward Kennedy: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”

I just don’t understand why Republicans can’t be more civil about this whole process.

If Scalia was a textual originalist, he wasn’t a very good or consistent one. From New Republic a few years back:

The decisive objection to the quest for original meaning, even when the quest is conducted in good faith, is that judicial historiography rarely dispels ambiguity. Judges are not competent historians. Even real historiography is frequently indeterminate, as real historians acknowledge. To put to a judge a question that he cannot answer is to evoke “motivated thinking,” the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.

The whole act of interpreting a law is fraught with personal biases and philosophies. Excessive zeal in textualism results in decisions where you either sound like a jerk or act like an idiot. The article uses as one example a case which hinges on the definition of a sandwich. Everybody knows what a sandwich is until you have to legally define it. Is a hamburger a sandwich? A hot dog? A burrito? If not, what makes it not one?

Thus, our concern with justices tends to rest on how we believe they will rule, and if they will rule in favor of progressive causes or more conservative causes, which such cases come up. The objections to Bork were purely about how it was believed he might rule on progressive issues, but most specifically abortion.

Against finding a right to same-sex marriage anywhere in the constitution. Which would be a textual reading of the constitution, but textualism is a conservative principle, while creative interpretation and exploring the penumbras and emanations is more the liberal bent.

Two cases where it was a “conservative” cause come to mind: the 2000 election and Citizens United. I don’t think there’s really a clear textual interpretation in the case of Citizens United, so it’s up to the individual to decide whether or not money represents free speech (i.e., to what degree access to a megaphone is integral to the right the free speech) and so on. In 2000, I think there’s a clear textual reading which would be to kick the case back to the Florida state legislature and have them do their constitutional duty (which would have been, in the end, the same result). Then, if it went to the SCOTUS, they could have pointed to the law and said: look, the Florida state legislature awarded the electors to Bush as stipulated (in, as I recall, the Florida constitution) which is what’s supposed to happen in this case so, that’s it.

I’m sure there are others. But confirming justices strictly on their judicial credentials without considering how they tend to find on cases and other partisan clues is just asking for another Souter or Kennedy.

Against finding a right to same-sex marriage anywhere in the constitution.

In that case I think you are drawing a false equivalence when you say that “…our concern with justices tends to rest on…if they will rule in favor of progressive causes or more conservative causes, which such cases come up” because I think it is wrong to call that a “conservative cause”.

There are three possibilities with regard to this issue. One, states can be forced by the court to re-define marriage so as to include same sex unions. Two, states can be prevented by the courts from re-defining marriage so as to include same sex unions. Three, states can be allowed by the courts to define marriage as they see fit.

Number one is clearly a ruling in favor of the progressive position. But why is number 3 the “conservative” position and not number 2? I’d say that number 2 is the conservative equivalent to number 1, and that number three is actually neutral with respect to policy, and only asserts on a position on procedure. And since virtually no one was arguing for number 2, I think your attempt to explain away the difference between the kinds of judges preferred by the left and those preferred by the right by labeling them equally driven by political preferences misses the mark.

I don’t want justices to rule in favor of conservative causes. I want them to rule in favor of what the constitution says.

Are you really that unaware of all the laws which were passed strictly defining a marriage as between a man and a woman? Or that Ted Cruz, Marco Rubio and others are running on a platform of overturning the ruling requiring recognition of marriage equality?

Are you really that unaware of all the laws which were passed strictly defining a marriage as between a man and a woman?

No, I am not unaware of them, but they are irrelevant to my claim, which, to remind you, was that no one was arguing that the Supreme Court should disallow states from redefining marriage so as to include same sex unions. No state that passed legislation changing its legal definition of marriage was sued in order to prevent it from happening, nor did any. judge rule that such legislation was unconstitutional.

Are you really unaware of the difference between allowing a state to do something and requiring it to do that something?

“I don’t want justices to rule in favor of conservative causes. I want them to rule in favor of what the constitution says.”

Which is, in the modern era, the conservative position. The left tends to find it far too constraining to be hamstrung in our rulings by the governmental process and procedures foisted upon us by a bunch of slave-holding white men 250 years ago!

That is largely true, but it still doesn’t credit your attempt to draw a simple partisan equivalence between the left and the right with regard to judicial preferences. It just shows how utterly partisan and without principle the left is relative to the right in this regard.

I don’t think it makes sense to conflate procedure with policy in order to dismiss differences in judicial preferences a nothing more than mere partisanship. A person who says “I want judges who will follow certain specified principles regardless of which policy may result from his ruling” is not being “partisan” in either the same way or the same degree as someone who says “I want judges who will rule such that only my policy preferences result from his ruling.” To dismiss the both as simply expressions of partisan desire is to ignore the actual substance.

“Bork’s record was distorted beyond recognition, and his name was transformed from a noun into a verb. The Borking of Bork was the beginning of the polarization of the confirmation process that has turned our courts into partisan war zones, resulting in more ideologically divided opinions and less intellectually adventurous nominees on the left and the right. It led to the rise of right-wing and left-wing judicial interest groups, established for the sole purpose of enforcing ideological purity and discouraging nominees who have shown any hint of intellectual creativity or risk-taking. And it had obvious costs for Bork.”

…

“Then came the Borking of Clarence Thomas, with a similarly sad result: The transformation of another convivial conservative appellate judge, who had a record of friendly interactions with liberal colleagues on the U.S. Court of Appeals for the D.C. Circuit, into an angry partisan, determined to seek ideological revenge for decades to come. And then both parties wised up and decided, for strategic reasons, to avoid future Borkable nominees.”

Thus, the Republicans have come up with a strategy to Bork any nominee Obama puts forth, no matter who.

You may call it “a record of friendly interactions with liberal colleagues”. Anita Hill called it sexual harassment. In this case Thomas arguably got the benefit of the doubt because he did get confirmed. And he is the real victim in this appointment stalemate. Without Fat Tony, whose paper is he going to copy off of?

While I disagree with the general liberal regard of Thomas (my favorite SCOTUS jurist, as has been well-documented) I think he will be fine.

Regarding Anita Hill, she produced no evidence and Thomas denied the accusations (and continues to) and I wasn’t there. However, it was something in his temperament, I’d think more women would have showed up to confirm Hill’s allegations, but maybe not.

But, yes, he may have just considered it flirtatious until asked to testify about it, at which point he decided his behavior had been inappropriate. Doubt he’d get away with it in this era where ever cellphone is a videocamera and audio recording device.

My opinion of the Hill controversy at the time was based on her following him from one job to the other.

Every woman I know who has actually been the victim of harassment would have done anything to have made the harasser just go away. The boss moving on would have been a blessing and no amount of money would have been worth following him to another job for.

My belief was that she knew how conservative he really was and decided to take one for the team to try and torpedo the nomination, but didn’t necessarily expect it to be leaked to the press.

It was for this reason that nothing was more important to Thomas’s sponsors during the Senate confirmation hearings than suppressing the testimony of other women with stories that were similar to Hill’s. There were three such women who were willing to speak out, and Thomas’s supporters knew he would not have had much of a chance if they had been allowed to do so. Although Thomas famously decried his mistreatment by the Democrats as a “high-tech lynching,” in truth, neither the Democrats nor the Republicans wanted to be blamed for killing his confirmation under such controversial circumstances. Rather than giving the women their say, the leaders of both parties kept them from the limelight.

Angela Wright, who, like Hill, had worked for Thomas at the Equal Employment Opportunity Commission, spent the hearings holed up in a motel across the Potomac River in Northern Virginia. She had come from North Carolina to testify that she remembered Thomas making inappropriate sexual remarks in the office to the women who worked for him, such as asking Wright what her bra size was, and talking about how sexy he found her unshaven legs. As she waited, the hearings were gaveled to a close without the public or members of the Senate ever having the opportunity to hear from her. (Instead, her statement was entered into the public record, later.) Rose Jourdain, an elderly speechwriter for the E.E.O.C., was able and willing to corroborate Wright’s account. She was recovering from surgery in the Washington Hospital Center at the time, but had still been willing to testify, even if she had to be rolled into the hearings in a wheel chair. Instead, she, too, waited and waited but was never called. She has since passed away. Sukari Hardnett, a former Special Assistant at the E.E.O.C., was relegated to submitting a written statement accusing Thomas of treating women on his staff in “odd but not egregious” ways that she found “inappropriate.” No persuasive reason has ever been given for why these women should have been denied a chance to testify. In the intervening twenty years since the Hill-Thomas showdown, however, two former Senate aides, both Democrats, have admitted privately that their bosses knew that Thomas would have been unlikely to survive multiple accusers. Facing this moment of decision, they flinched.

“The only reason I didn’t testify is because I wasn’t called to testify. I was there for three days waiting with my attorneys for the judiciary committee to call me, and it was their decision. …They decided that they really didn’t need my testimony, but there was just so much maneuvering behind the scenes. They wanted me to say that, please let me out of the subpoena, and then it was – you know, they wanted to portray me as having cold feet and backing out, and when we refused that deal, they finally offered me the opportunity to at least put my statement in the record. I think ultimately what happened is that they were just afraid to call me.”

Seems hard to believe that they’d trot out Hill, who’s credibility was very suspect to begin with and then pull back on actually performing the coup de gras by having a litany of victims testify because they were afraid to have him disqualified as a sexual predator? Those other broads must have really been something if Hill was the best they had.

So who kept them from testifying if people knew it would the straw to break the camel’s back? Which leads to the conspiracy theory that at least some liberals wanted to rough up Thomas rather than permanently damage him. In which case “high tech lynching” is not quite the right metaphor.

It amazes me that this racist nonsense still has currency on the left.

I was just yanking your chain. It is probably the other way around. 538 did an analysis and Scalia was never the most conservative justice on the bench, just the most acerbic. If anything he was mellowing as he got older so it’s just as well he passed away before went all Souter on us.

It’s not, at its root, racist, IMO, it’s partisan. As with much of the racism the right is accused of regarding Obama, it is the fact the person is ideologically wrong that makes casual racism acceptable or even desirable, not a root racism. It’s hard to say it’s classical racism when it’s only applied to ethnic minorities with a specific ideological or partisan affiliation.

That, and, of course, plausible deniability. “My favorite person in the world is [insert name of ideologically correct ethnic minority here]. It’s just a statement of fact that [ideologically incorrect ethnic minority] is [list of stereotypical traits historically associated with the minority of which this particularly ideologically incorrect minority happens to be a member]. I’m no racist!”

I think the problem might have been that by the time Hill was testifying, there might have been some credible threat of bringing other women out to discuss Kennedy’s or Biden’s fitness for tackling the issue of sexual harassment. Politicians in general are not known for their sensitivity about such issues. Also possible that some additional background research was done on the other potential witnesses, and it was decided that they had things in their background that might result in their testimony backfiring. It may well have been strategic.

In any case, my suspicion is that there is some or even a lot of truth to it. What we now call “sexual harassment” was once basically thought of as “demonstrating confidence when interacting with attractive women”. Wrongly, of course, but it takes times for the culture to become enlightened about such things.

Before his nomination, however, Judge Bork had asserted repeatedly, consistently and unequivocally that the ”result” in that case, Griswold v. Connecticut, could not ”have been reached by proper interpretation of the Constitution,” as he put it in a 1982 speech. He had noted that he considered the Connecticut law ”silly” as a matter of policy, but had asserted quite emphatically that the Court had no constitutional mandate to strike it down.

Bork got vilified as an ultra-rightwing monster, when in fact he was just a pedant. Ah, the poor, misunderstood pedant.

There is a certain faction of conservatives, of whom Rick Santorum is the most prominent, who want to have Griswold overturned as a means to abolishing all contraception in service of promulgating Catholic doctrine as public policy. Whether Bork was a sympathizer or just a dupe will never be known.

I don’t think he was a sympathizer or a dupe, he was just a pedant, and not worried enough about it to overcome his general pedantry.

Bork on Griswold

J. Douglas (delivering the opinion of the court) interprets many amendments to have textual rights with penumbras of privacy. Bork disagrees on two points:
i. a general right to privacy is not found anywhere
ii. defining that right to privacy is not well-defined by Douglas or anyone else

The standard Douglas requires to restrict freedom is “sustantive due process,” which Bork says is ill-defined. It means that a court must decide in every case what is protected by the right to privacy and what is not to be protected.

Equal Protection has two possible meanings: formal equality, which requires that the government not discriminate. However, isn’t the function of the law primarily to discriminate (i.e. between minors and adults)? The courts actually need to pick and choose which criteria may be used for discrimination and which criteria may not be used. Vague references to ‘fairness’ or ‘fundamental’ rights are needed to achieve this.

Bork cites Wechler’s opinion on Brown: “If the freedom of association is denied by segregation, integration forces an association upon those for whom it is unpleasant or repugnant.” If the freedom of association is bilateral (includes the freedom to not associate), then “is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail.”

Bork argues that argument is not productive for Brown or for Griswold. Instead, some moral code must be applied to reach a sound conclusion. The 14th amendment was designed to enforce black equality against state discrimination. This amendment does not address the issue of private discrimination. Since Griswold turns on the right of the government to discriminate against people who want to use contraception. Since the 14th A. was not written with any concern for reproductive rights, it should not be used to strike down any sort of discrimination simply because that discrimination is taken to violate some idea of fairness.

“If the freedom of association is denied by segregation, integration forces an association upon those for whom it is unpleasant or repugnant.”

The all important Right To Hate that conservatives seem so defensive of. It’s the same argument being used by those claiming Christians are being persecuted by not being allowed to discriminate against gays and the transgendered.

It’s also the same argument Rand Paul used to use to claim that civil rights laws shouldn’t apply to private businesses. These are repugnant ideas which should not be enshrined no matter how noble and high-minded they are gussied up as.

Or pedantically, the right right of free association (a term that does not appear in the constitution, but has been upheld by court). The argument here is generally that the Jewish Anti-Defamation League might be affected it was forced to admit Neo-Nazis (or, presumably, vice-versa). I don’t think there is anything that protects individuals from accidentally encountering repugnant individuals in the course of everyday life and activities, thus nothing unconstitutional about forced integration of schools or banning of “White’s Only” facilities in public places. Then one quibbles about compulsory education, I suppose, as requiring association between those that may find each other repugnant . . . but, still, ultimately a textual reading of the constitution does not suggest that such laws are inherently unconstitutional.

“It’s also the same argument Rand Paul used to use to claim that civil rights laws shouldn’t apply to private businesses.”

It’s an interesting idea. What businesses would have, say, a white’s only lunch counter now, or require African-American’s to use the rear entrance? It would not be possible. Such a business would be doomed on many levels.

Yet at the time the laws passed, such businesses were doing fine, and businesses that did not practice such segregation might find themselves targeted for their fancy egalitarian thinking. I find it hard to argue that it is the interest of the general public to allow any institution, no matter how small, to discriminate on race or gender.

Yet you do have to watch out for that slippery slope. Eventually, we’ll end up outlawing every stupid decision anybody could possible make!

Yup. And at some point it becomes very difficult to argue the pedantic principle (let’s say states rights in this case, or freedom from association in another, if you want) when it seems pretty clear that de-segration was a net social positive and pushed the overall culture towards greater integration faster than would have ever happened absent such laws. It becomes a question of which right should trump another right (and such things come up) in addition to the simple of question of: what is right?

Of course, there’s other things to consider, such as the onus upon the individuals and businesses forced to change their operating procedures under such mandates, and in this case there seems to be no onus put upon the proprietors of such establishments other than by their own poor attitudes.

There is a certain faction of conservatives, of whom Rick Santorum is the most prominent, who want to have Griswold overturned as a means to abolishing all contraception in service of promulgating Catholic doctrine as public policy.

If such a faction actually exists (I am highly skeptical), it is apparently is as divorced from reality as is the faction of the left that wants to maintain Griswold as a means of preventing contraception from being outlawed across the nation. Truthers and Birthers have nothing on those who we must surely start calling Rubbers.

There are certain evangelicals and maybe ultra-orthodox Catholics who want to see contraception banned. Some have even gotten into office.

That being said, they will have no luck on this, any more than the clever lady who wants to require men to get permission from their wives to purchase Viagra (and for it to be banned from sales to single men). It’s never going to happen, any person who stops and thinks for three seconds knows it’s never going to happen, but they are just offended that anybody can even think that way.

Well, unless the loons are right and we’re just a step away from becoming a Muslim caliphate. Then we might see birth control banned. 😉

For the record, I and every lawyer and legal assistant in my building thought Hill was telling the truth.

Which is no more evidence than zero.

We stopped all work to watch her testify. TV in the conference room.

I am as certain as I can be that if she was NOT telling the truth she was motivated by something personal, not something political. She was a R, and a law professor at OU, where her entire career was going to go poof because of this. She had refused to testify and was subpoenaed. Only a deeply personal motive could have brought that level of career destructive testimony.